IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110005747 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge to an honorable discharge and that the narrative reason for separation be changed to family hardship.

2.  The applicant states he requested a hardship discharge to assist his mother with his father due to his father's illness. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a statement of support, and a letter from the National Personnel Records Center.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 17 July 1979 and he held military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  He was assigned to the 3rd Battalion, 36th Infantry Regiment, Kirchgoens, Germany.

3.  The complete facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records show that on 3 April 1980 he was notified by his immediate commander that discharge action was being initiated against him under the provisions of chapter 5, Army Regulation 635-200 (Personnel Separations), due to the Expeditious Discharge Program.  The specific reasons were due to his inability to adapt to military life, failure to demonstrate promotion potential, lack of self discipline, poor judgment, and a lack of motivation.  The commander also stated the applicant had been counseled on four separate occasions.

4.  On an unknown date, the applicant acknowledged notification of the proposed discharge action.  He was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, the possible effects of a general discharge, and the procedures and rights that were available to him.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He voluntarily consented to the separation action.  He also elected not to submit a statement on his own behalf.

5.  On 14 April 1980, the separation authority approved his discharge action under the provisions of Army Regulation 635-200, paragraph 5-31 for an inability to adapt to military life, and directed the issuance of a General Discharge Certificate.  On 28 April 1980, he was discharged accordingly.  

6.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, expeditious discharge program, due to failure to maintain acceptable standards for retention, with a general discharge.  He completed 9 months and 12 days of creditable active service.

7.  There is no evidence in the available records to indicate he requested a hardship discharge due to a family member's illness.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.


9.  The applicant provides a statement of support, dated 29 September 2010, wherein his mother indicated that she and her pastor wrote a letter to her son's commander stating that her husband was sick and she needed her son at home to help with him.  She further stated she does not remember the month or year the letter was sent but her son was sent home with an honorable discharge.

10.  Chapter 5, Army Regulation 635-200, in effect at the time, provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless the member voluntarily consented to the proposed discharge action.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

11.  Chapter 6, Army Regulation 635-200, in effect at the time established the criteria for a Soldier to be discharged because of dependency or hardship.  It stated, in pertinent part, Soldiers who applied for a dependency or hardship separation would not be separated because of dependency or hardship if they were being processed for discharge under the provision of paragraph 5-31, Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances surrounding his discharge.  However, the available evidence shows his commander initiated separation against him under the provisions of paragraph 
5-31, Army Regulation 635-200 due to inability to adapt to military life, failure to demonstrate promotion potential, a lack of self discipline, poor judgment, and a lack of motivation.  The applicant voluntarily consented to his discharge.  

2.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his right and that the type of discharge directed and the reason for separation were appropriate.  
3.  The evidence of record does not show and the applicant did not provide any evidence that shows he submitted a request for a hardship discharge or that he met the criteria for a hardship discharge.  In addition, a request for a hardship discharge would not have been acted upon once he was being processed for discharge under the provision of paragraph 5-31, Army Regulation 635-200.

4.  In view of the foregoing, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X__    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110005747



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ABCMR Record of Proceedings (cont)                                         AR20110005747



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